Judge Robertson Attacks D.C. Circuit’s Guantanamo Jurisprudence

The Constitution Project has posted a transcript of a panel discussion it hosted last week on “Boumediene‘s Legacy and the Fate of Guantanamo Detainees.” The panelists were Professor Stephen Vladeck of American University’s Washington College of Law, Brian Foster of Covington & Burling, and former District Court Judge James Robertson.

Judge Robertson criticized the D.C. Circuit for its Guantanamo jurisprudence, taking as exemplars two of the cases he decided on the district court — Awad and Salahi:

[The D.C. Circuit] appears to be hostile, if not defiant, to the Supreme Court’s directive in Boumediene that Gitmo detainees are entitled to meaningful habeas corpus review of their detention. And as Steve [Vladeck] has pointed out, the Supreme Court seems, for whatever reason . . . maybe it’s institutionalism, . . . to have washed its hands of this problem, which is incomprehensible to me.

. . .

I decided [Awad] on the basis of a number of disputed documents, and I went through carefully the road map that had been laid out by Al-Bihani: Was he part of al-Qaida; had he provided material support; was there are a preponderance of the evidence; could I use hearsay; yes, I could, and I understood the preponderance standard. I decided on the basis of the law that had been handed down to that point and on the basis of the record of that case that he was not — that he had indeed been part of al-Qaida, and the Court of Appeals was happy to affirm me. I had been a good boy. I had done — (laughter) — I had done preponderance correctly; I had done the . . . burden of proof; I’d analyzed it correctly.

. . .

Salahi was a different case. . . . And the facts of Salahi were pretty difficult, really. Salahi, the government offered to prove, . . . had provided overnight housing when he lived in Germany to jihadist recruits, two of whom went on to be part of the 9/11 bombers, and one was a sort of an overseer of that project. He also had moved to Montreal for a while, where he lived with some very dodgy al-Qaida-type people. He had an uncle who was close to Osama bin Laden. He had provided some help to somebody associated with al-Qaida in getting telecommunications equipment set up in Africa. He may have steered a recruit or two to al-Qaida.

But the standard was whether he had been part of al-Qaida at the time of hostilities, or from 9/11 forward. And his position was he was out of al-Qaida. . . . I wrote a long opinion about this case in which I said, look, this guy may have been a . . . fellow traveler of al-Qaida; he may have been a supporter of al-Qaida, but was he part of al-Qaida? I couldn’t find that he had been. And I said a few other things. . . . [T]his probably was what irritated the Court of Appeals most of all. I said, you know, a guy who is locked up in Gitmo doesn’t have access to anything. You’re asking him to prove his case. You’re asking him to rebut the presumptions against him; at the very least, . . . the government’s evidence against him should be viewed with, I said, something like skepticism.

Well, that was obviously the wrong flag to raise before the Court of Appeals. (Laughter.) But the Court of Appeals, in, frankly, a rather gentle opinion, said Robertson hasn’t read Al-Adahi, which came down . . . after he decided Salahi.

Although Judge Robertson praised Judge Tatel’s dissent in Latiffor “belling the cat,” he identified in Judge Tatel’s earlier Salahiopinion the same tendency to “move[] the goal posts” that Judge Tatel later criticized in Latif:

[The D.C. Circuit’s Salahi opinion] said — but here’s the goal posts starting to shift: “These decisions make clear that the determination of whether an individual is ‘part of’ al-Qaida must be made on a case-by-case basis by using a functional rather than a formal approach” — whatever that means — “and by focusing upon the actions of the individual in relation to the organization. . . . [T]here may be other indicia that a particular individual [was] sufficiently involved with the organization to be deemed part of it.”

And then they go on to list a whole bunch of factual questions the Court of Appeals has. Well, everybody had those questions, but they weren’t in the record. I had to deal with the record that was before me. But the Court of Appeals reversed and said, we’re sending this back for more proceedings. And I think it’s now back before Judge Sullivan and I don’t think he’s ruled on it yet.

Judge Robertson reserved his sharpest criticism for Latif‘s holding that government intelligence reports are entitled to a presumption of regularity.

Latif was not my case. . . . I signed on to an amicus brief in that case, signed by 15 or so retired federal judges who don’t understand this presumption of regularity thing. It completely blows away fact-finding in the District Court. Another amicus brief was filed by a bunch of intelligence officers, who said: Presumption of regularity for intelligence reports? You’ve got to be kidding. Intelligence reports are, as Judge Tatel pointed out in his dissent, created in the fog of war, using methods we don’t even understand, so how could they be presumed to be regular?

Judge Robertson also criticized the Supreme Court for refusing to hear the post-Boumediene Guantanamo cases and speculated about the Court’s reasons for denying cert.

The critical question here is why the Supreme Court continues to deny cert. And of course the answer is, Guantanamo detainees have no constituency. Nobody except Covington and other great lawyers are up there fighting for them. But it begs the question that is really at the bottom of this whole gathering today: What is the fate of these people? Can we really continue to hold people who cannot be charged because the evidence is too classified or because they’ve been beaten up, the way Salahi was? Can we really hold these people for the rest of their lives, even though they can’t be charged? I don’t think so.

. . .

Boumediene called for a meaningful review, habeas review, and what’s happened in the circuit has been to — first, to take the capital letter off the word “meaningful,” and then take the word “full” — take the letters “ful” off the end of “meaningful,” and then to sort of deprive it of meaning.

I mean, when a petitioner is stuck in Guantanamo and told that he’s got to rebut any presumptions that arise against him, and he’s got to challenge a presumption of regularity for intelligence reports, he’s had it. . . . [I]f the government wants to keep him there, the government will keep him there with intelligence reports that cannot be meaningfully challenged. To me that guts the meaning of Boumediene, and at least, it seems to me, the Supreme Court ought to be looking at that presumption that was written into the law by Judge Brown and ought to be looking at this concept of Judge Randolph’s — what does he call it — . . . conditional probability analysis?

I guess I think that meaningful review means that the Supreme Court ought to be actively reviewing what the lower courts do with their decisions, and this Supreme Court is not doing it.

Now, I think Steve [Vladeck] is probably exactly right and it has something to do with the internal politics of the court. If the progressives can’t count five votes, can’t count Kennedy, they’re not going to vote for cert review of something that’s going to turn out the wrong way.

Lyle Denniston, Ex-Judge: Boumediene Is Being “Gutted”, SCOTUSblog (July 17, 2012) (“Judge Robertson, though, seemed somewhat optimistic about the long-term prospects for the Guantanamo captives. He noted that there is no time limit on lawyers for detainees repeatedly seeking to file habeas challenges, as circumstances change — at least with the passage of time. ‘Some court, some day,’ he predicted, ‘is going to find that the government can’t hold these people for the rest of their lives.’ “).